Legal Issues Concerning Transit Agency Use of Electronic Customer Data (2017) / Chapter Skim
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59 debit or credit cards or their mobile devices linked to a bank-issued card. The collection of customers' electronic personal data may also be used to benefit transit customers through increased convenience, more payment options, and additional services.
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60 Table 1. Summary of Possible Claims and Defenses in Connection with Transit Agencies' Collection of Customers' Electronic Data785 Possible Claims Possible Defenses Breach of express or implied contract Compliance with transit agency privacy policy and/or terms of use Compliance with state laws on data collection and security Transit agency policy and practices securing customers' personal data Compliance with state law and/or industry PCI DSS requirements Whether customers own their data after providing them to a transit agency and possibly to others Whether a plaintiff has standing to bring an action against a transit agency that arises out of the agency's collection, use, or disclosure of data Whether a plaintiff is able to show actual damages Negligence Whether an agency has sovereign immunity under state law Compliance with transit agency privacy policy and/or terms of use Transit agency did not fail to secure or protect personal data from disclosure Whether customers own their data after providing them to a transit agency and possibly to others Whether a plaintiff has standing to bring an action against a transit agency that arises out of the agency's collection, use, or disclosure of data Whether a plaintiff is able to show actual damages Whether a disclosure was willful or intentional Whether data were collected or disclosed by a private contractor Federal constitutional claims Whether a claim is possible given the courts' decisions narrowing the zone of (e.g., based on Bivens case or § 1983)
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61 Possible Claims Possible Defenses Section 1983 claim applicable only to a person acting under color of state law Liability under § 1983 only for egregious government action that shocks the conscience Federal Privacy Act of 1974 Federal Privacy Act requires willful or intentional disclosure of data in violation of the statute Privacy Act applies only to federal agencies and possibly their contractors No cases located applying the Privacy Act to transit agency collection or use of customer electronic personal data Claimant's failure to show damages Federal Electronic Communications Privacy Applicable only to intentional interceptions of data Act of 1986 (Federal Wiretap Act and Stored Communications Act) Federal Computer Fraud and Abuse Act Liability, inter alia, for intentionally accessing a computer without authorization or exceeding access authorization, but conduct must involve one of several listed factors to establish liability State constitutional violations of a right State's constitution (or the state's highest court)
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62 whether transit agencies' privacy policies or terms-of-use agreements provide a ground for dismissal of a claim for breach of an express or implied contract or for negligence. It does not appear that there is either a specific constitutional right to privacy under the U.S.
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63 electronic data. Numerous states require government agencies to develop and establish commercially reasonable procedures to ensure that personal data collected by a government agency are secure and cannot be accessed, viewed, or acquired unless authorized by law.
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